Turner v Port Macquarie Community College Incorporated

[2022] NSWSC 950

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Turner v Port Macquarie Community College Incorporated [2022] NSWSC 950

Hearing dates:

18 July 2022

Date of orders:

18 July 2022

Decision date:

18 July 2022

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

(1) The plaintiff is a person who is not under legal incapacity and pursuant to rule 7.18 of the Uniform Civil Procedure Rules 2005 (NSW), the Court removes the tutor Sarah Younger from these proceedings.

(2) Judgment for the first defendant.

(3) The plaintiff and the first defendant to pay their own costs.

Catchwords:

CIVIL PROCEDURE – Removal of tutor from proceedings – Settlement approved – No question of principle

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), r 7.18(1)(b)

Category:

Principal judgment

Parties:

Mitchell Morris Turner by his tutor Sarah Younger (Plaintiff)
Port Macquarie Community College Incorporated (First Defendant)
Volunteer Marine Rescue NSW (Second Defendant)
Stebercraft Pty Ltd (Third Defendant)

Representation:

Counsel:
D Stanton (Plaintiff)
P Newton (First Defendant)
No appearance (Second Defendant)
M Skelly (Third Defendant)

Solicitors:
Stacks Law Firm (Plaintiff)
Sparke Helmore Lawyers (First Defendant)
McCabes (Second Defendant)
Mills Oakley (Third Defendant)

File Number(s):

2020/141108

Judgment

1. By an amended statement of claim filed on 29 June 2020, the plaintiff seeks damages for injuries that he allegedly suffered in an accident on 17 May 2017, that he contends arises from the negligence of the three defendants. At the time of the accident, the plaintiff was aged 15. The accident allegedly occurred during a school excursion on a boat, during which he was thrown overboard, fracturing his skull and injuring his shoulder on the way, causing psychological as well as physical injuries. An issue of fact is whether the accident was caused, in part or entirely, by the movement of a console in the boat that had been removed and replaced during repairs to the fuel tank. The first defendant is the school that the plaintiff was attending at the time, the second defendant is the organisation that the plaintiff alleges provided the boat and activities in the boat at the time of the incident and the third is the repairer of the boat.

2. By a notice of motion filed on 18 May 2022, the plaintiff sought three orders, only one of which is pursued:

“The plaintiff is a person who is not under legal incapacity and pursuant to 7.18 of the Uniform Civil Procedure Rules, the court removes the Tutor, Sarah Younger, from these proceedings.”

3. The relevant background to the application is that the action was commenced with the plaintiff’s mother, Sarah Younger, acting as his tutor because, according to an affidavit sworn by her on 7 June 2022 and read on this application, at that time it was not clear whether the plaintiff was under a legal incapacity due to his injuries.

4. In her affidavit, Ms Younger stated that she is unaware of any medical opinion to the effect that the plaintiff is, in fact, under a legal incapacity or that he lacks the capacity to understand his current claim and provide legal instructions. He is employed in a nursery, has a driver’s licence and he manages his own financial affairs including finance on a recent purchase of a car. Accordingly, she requests that the Court remove her as the plaintiff’s tutor.

5. The plaintiff’s solicitor with the carriage of the matter, Jodie Thurgood, by an affidavit sworn on 18 May 2022, confirms that the plaintiff was thought to require a tutor at the time the action was commenced because it was unclear whether his head injury had resulted in him suffering a legal incapacity, but that she is unaware of any information or medical reports that indicate that the plaintiff is incapable of managing his own affairs. In conferences that have included his barrister, she has witnessed him interacting with the conference participants. She concluded:

“In my observation, he is capable of following conversation, receiving my advice and that advice of [the plaintiff’s barrister], along with offering his own contribution to the discussion. As a result of my observations, I have no difficulty stating that the plaintiff does not demonstrate any cognitive difficulty that would impair his understanding of these proceedings or impair him from giving me instructions.”

6. Rule 7.18(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW) allows the Court to remove a tutor. I am satisfied on the evidence before me that the tutor was appointed out of an abundance of caution, given the head injury, and that it is now apparent that the services of a tutor are not required.

7. The plaintiff and first defendant have negotiated a settlement of their dispute, effectively that judgment be entered for the first defendant and that the plaintiff and first defendant pay their own costs. The proceedings between the plaintiff and second and third defendants are continuing.

Orders

8. Accordingly, I make the following orders:

1. The plaintiff is a person who is not under legal incapacity and pursuant to r 7.18 of the Uniform Civil Procedure Rules 2005 (NSW), the Court removes the tutor Sarah Younger from these proceedings;

2. Judgment for the first defendant; and

3. The plaintiff and the first defendant to pay their own costs.

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Amendments

18 July 2022 - Amendment to catchwords

Decision last updated: 18 July 2022